Updates on Vote Status and Hearings
This website provides interested employees with updates on the OLRB hearings, and also includes some information on the organizing effort and the merits of being part of the Society for new employees.
Please check back regularly for updates on the status of the vote count and the OLRB hearings. Also check back for clarifications or responses to employer communications.
Update June 2018
OLRB Decision and Additional Hearing Dates
The Society filed two applications at the Ontario Labour Relations Board (the "Board") on May 7, 2018.
In the first application, the unfair labour practice complaint (the “complaint"), the Society asserts that NJI violated the Labour Relations Act by providing salary increases that were less than those paid in 2014, 2015, 2016 and 2017. The Society asserts that by deviating from its Policy and practice, NJI breached the “statutory freeze”, which provides that while an application for certification is pending, the employer cannot unilaterally alter employees’ pre-existing terms and conditions of employment. The Society also asserts, through this complaint, that the employer violated the Labour Relations Act by blaming the subpar salary increases on the union in an effort to dissuade employees from supporting the union.
The Ontario Labour Relations Board has the power to make orders giving what is known as "interim relief" before hearing full evidence and argument on the merits of a complaint. That means that they can make a temporary order after a quick, more informal hearing, and then consider the issue in more detail later. In addition to bringing the main application, the Society also asked for this kind of interim relief, including an Interim Order from the Board that all employees immediately be granted the usual salary increases before the Board fully considered the union's complaint. The Board deals with applications for “interim relief” very quickly.
The Board heard the parties’ oral arguments on the Society's request for this "interim relief" on May 18, 2018, eleven days of the application was filed. The Board issued its decision on the Society's request for interim relief on May 31, 2018. A copy of the Board’s decision is available here: https://www.canlii.org/en/on/onlrb/doc/2018/2018canlii51312/2018canlii51312.html?resultIndex=1
NJI argued before the Board that the Society's request for interim relief should be dismissed for delay because approximately two and a half weeks passed between the date the salary letters were sent and the date the application was filed. The Board rejected this argument as follows:
44. In all of the circumstances, I do not find the delay to be excessive. The materials filed with the application are quite extensive. In making the application the Union was required to investigate the administrative policy and the Employer’s history of granting wage increases.
NJI also argued that even if the Society’s allegations were accepted as true, there would be no breach of the Labour Relations Act. The Board rejected this argument as follows:
49. I am satisfied that the Union has stated a prima facie case of a breach of the statutory freeze provisions and section 70 and 72 of the Act. In my view, it is entirely possible employees had a reasonable expectation that they would receive a 4.85% increase in accordance with the practice and the text of the administrative policy. Notably, those expectations are explicitly recognized in the minutes of the Board of Governor’s meetings for 2015-2016. Moreover, Justice Kent’s email on the eve of the vote would have done nothing to temper that expectation. Indeed, her words, rather than warn there might be negative changes, suggest there would be positive changes. It is hard to believe that “moving forward on a range of important issues including reviewing all of our salaries and benefits …” meant going backwards (or less forward) on wages.
NJI further argued that salary increases are subject to approval by the Board of Governors. The Board noted that NJI had not filed an account from a member of the Board of Governors describing its decision-making process. The Board also noted that NJI suggested during the course of its argument that “it is scandalous for the Union to in any way assert that the Board of Governors, some of whom are justices of the Supreme Court, could have had anti-union animus in coming to its decisions” (para. 20).
The Board agreed with the Society about the nature of the harm that an employer’s unlawful conduct can do during the period between the filing of a certification application and the conclusion of a first collective agreement:
53. It is the Union’s position that the making of the interim wage increase is necessary to protect its vital interests. If the interim order is not granted, the Union, and not the employees, will suffer irreparable harm. If, as a result of the Employer’s actions, employees lose confidence in the Union or are fearful of supporting the Union (either in testifying at a hearing or by supporting collective bargaining), then its organizing drive may well be defeated.
54. In principle I agree with the Union. I have no hesitation in finding that the time between the filing of an application for certification and the conclusion of a collective agreement is sensitive, especially where as, here there is the prospect of lengthy litigation in connection with the application for certification and the unfair labour practice complaint. The maintenance of employee confidence in the Union and the reduction of employee fears may well be crucial for the Union to properly litigate these matters.
Ultimately the Board declined to grant the wage increases before hearing and determining the complaint on its merits. Instead, the Board directed the Employer to post a Notice to Employees in the workplace providing information about employees’ rights under the Act. The Board concluded that doing so was necessary to ensure that employees understand that the “Union seeks to protect their interests, that the law protects employees when exercising their rights under the Act and the Board is prepared to remedy any wrongdoing, if there is any” (para. 57).
Now that the Ontario Labour Relations Board has decided the union's request for an interim (temporary) order, the next step will be for the Board to decide the actual unfair labour complaint. The Board will have to hear more detailed evidence and argument. This evidence and argument will focus on whether NJI breached the statutory freeze by failing to grant the usual salary increases, and whether NJI otherwise breached the Labour Relations Act, 1995 by blaming the union for the reduced increases. During this phase of the process, the events leading to NJI's decision to reduce the salary increases, including how NJI calculated the budget for 2018-2019, the information which NJI management gave to the NJI Board of Governors about its budget, and the discussions held by the Board of Governors when they considered the budget, will likely be considered by the Ontario Labour Relations Board.
Subsequent to receiving the Board's decision of May 31, 2018, the Society wrote to the Board seeking an expedited hearing of the complaint on its merits. In response, the Board issued a decision setting hearing dates of August 9 and 10, 2018. NJI advised the Board that it is unavailable on those dates but the Society objected to the adjournment of these quick hearing dates. On June 14, 2018, the Board declined to reschedule the hearing of the complaint which will proceed on August 9 and 10, 2018 at the following location:
Ontario Labour Relations Board
505 University Avenue - 2nd Floor
The hearing of the certification application is scheduled to continue on July 23, 25, 27, 30 and 31, 2018 at the following location:
130 Slater Street,
Suite 200, Gillespie Reporting Services,
Ottawa ON K1P 6E2
Update May 2018
Society Files Two New Applications Against NJI
On May 7, 2018, the Society filed two new applications at the Ontario Labour Relations Board.
The first application asserts that NJI violated the Labour Relations Act by providing salary increases less than the increases employees are entitled to under the Salary Administration Policy and less than the increases that employees received in 2014, 2015, 2016 and 2017. The Society asserts that by deviating from its Policy and practice, NJI breached the “statutory freeze”, which provides that while the application for certification is pending, the employer cannot unilaterally alter employees’ pre-existing terms and conditions of employment. The Society also asserts that the employer violated the Act by blaming the subpar salary increases on the union in an effort to dissuade employees from supporting the union.
With the second application, also filed on May 7, 2018, the Society seeks an Interim Order from the Ontario Labour Relations Board that all employees immediately be granted the salary increases set out in the Salary Administration Policy, retroactive to April 1, 2018.
The Ontario Labour Relations Board adjudicates applications for Interim Orders in an expedited fashion. As a result, a public hearing will be conducted by the Board on Friday, May 18 at 9:30 am at the following location:
Gillespie Reporting Services
130 Slater Street, Suite 200,
Ottawa ON K1P 6E2
We will provide additional updates as the litigation of these new applications and the application for certification continue.
Update April 2018
OLRB Hearings and Challenges Faced
As you know, we are in the process of litigating the application for certification at the OLRB. The main issue in the case is whether the Managers and Accounting department employees must be in the bargaining unit as asserted by the employer. As a result, the Board will be examining the duties and responsibilities of the 11 people the employer says must be added to the unit the Society wishes to represent.
In December, the OLRB scheduled four days of hearing to start the litigation process: March 29, April 9, April 12, and April 18, 2018.
In preparation for the hearing dates, the Society wrote to the employer on February 7, 2018 to request that it produce certain documents. The documents we requested all relate to the eleven positions in dispute. It is a normal part of the OLRB process for parties to exchange arguably relevant documents prior to the start of a hearing.
On February 23, 2018, the employer advised the Society and the OLRB that it would not produce the vast majority of the documents that we requested. On March 9, 2018, we wrote to the employer reiterating our request for documents and providing our reasons why we viewed the refusal to produce documents as unjustified. In late March, the employer indicated that it was not backing off its position and continued to refuse to produce any additional documents. This made it necessary for the Society to seek the intervention of the OLRB, in the form of an order compelling the employer to produce arguably relevant documents.
On March 26, 2018, we had a conference call with OLRB Vice-Chair Patrick Kelly about the disputed documents. The Vice-Chair reserved his decision after hearing the parties’ arguments.
March 28, 2018 was the first day of hearing. The employer called its first witness, Senior Program Manager Amber McCauley. Ms. McCauley did not conclude her testimony. The parties were unable to use the full day of hearing because the employer had not produced documents which we were entitled to view before completing the examination of a witness.
On March 29, 2018, the OLRB issued a decision ordering the employer to produce most of the documents we had requested back in February, 2018. The Vice-Chair established a deadline of April 6.
On April 4, 2018, the employer wrote the OLRB to ask for a number of things, including:
1. a 2 month extension to its production deadline (June 8 instead of April 6); and
2. that the upcoming hearing dates be cancelled because the employer was busy and unable to produce the documents in time for any of the scheduled hearing dates.
On April 6, 2018, the OLRB issued a decision which included the following comment:
There is considerable validity to the union’s argument that NJI has been on notice since February 7, 2018 of the scope of the applicant’s production request. I agree that it would have been prudent, reasonable and responsible for NJI to have at least undertaken a search at that point even though it viewed that applicant’s request as inappropriate. I agree further that NJI’s request for a two-month extension is entirely unreasonable. (para. 18)
The OLRB went on to grant the employer a 10 day extension to comply with the production order. As a result of this extension, it was necessary to cancel the April 9 and 12 hearing dates. The April 18 hearing date is scheduled to proceed. We expect that Ms. McCauley will continue her testimony at that time. The OLRB has scheduled additional dates of July 23, 25, 27, 30 and 31. The hearings are public and we encourage you to attend. The July dates will be held in Ottawa at 130 Slater St., 2nd floor. We will update you again in the near future.
OLRB Orders/Decisions Available Online
Your employer should be posting the communications from the OLRB in an accessible location for all staff once they receive them. If you don't see a communication posted you can go to the Canadian Legal Information Institute (CanLII) for the most recent information. Click here for a current list.
Update December 19, 2017
Statutory Freeze and Claiming Overtime
Statutory Freeze Information
Since the representation vote, the employer has been communicating to employees that as a result of the Society's application, it is unable to make changes. In particular, the employer has told employees that recent vacancies cannot be filled because of the union's application. This is not the case.
The employer is represented by counsel and as such would know that while the certification application is pending, the Labour Relations Act allows it to conduct "business as usual". There is no reason for the employer to expand the workload of the rest of the workforce while the union's application is pending. Indeed, the failure to fill vacancies appears punitive. And blaming the union for not filling vacancies can only be seen as an act borne of anti-union sentiment, designed to make the union look bad.
The "freeze" provisions of the Labour Relations Act permit the employer to conduct "business as usual". Failure to do so could be found to be an unfair labour practice.
The "freeze" provisions also allow the employer to give salary increases, improve benefits and provide "top-up" to employees taking maternity leave while the certification application is pending, as long as the employer seeks and obtains the union's consent to do so. Needless to say, the employer has not sought our consent to do any of these things. And needless to say, were the employer to do so, the Society would consent to these improvements to your terms and conditions of employment.
Retroactive Overtime Claims
Finally, as you know, the employer has backed off its position that senior advisors who are lawyers are not "employees". This means that they, and indeed all of the employees at NJI, are entitled to overtime. Anyone who is interested in knowing more about their legal rights to overtime, including anyone who wishes to make a claim for retroactive and ongoing overtime, is invited to contact me at email@example.com
Update December 11, 2017
Vote Count and Hearing
Last week the employer dropped their challenge that the lawyers should be excluded from the union's proposed bargaining unit. As a result we were able to count the cast ballots today. The ballots were cast 5 against and 5 in favour of joining the union. That brings us to a total of 18 in favour and 14 opposed.
It should be noted that those ballots that have been counted to date comprise the union's proposed bargaining unit. Your employer, who clearly articulated their opposition to the unionization of the workplace during our campaign, added another 11 employees to the list just prior to the vote. For that reason we do not have a conclusive result and this process will continue for another 6 months and perhaps longer.
Instead of a clear result based upon the unions proposed bargaining unit, we have ongoing hearings with initial dates scheduled for March 28, April 9, 12 and 18. Additional dates may be added as needed. It will be necessary for employees to be called to testify.
We will be providing additional information tomorrow on the hearing process.
Update December 8, 2017
Employer Drops Challenge of Senior Advisors
This afternoon the employer withdrew their objection to lawyers being in the union's proposed bargaining unit. As a result a count of the Senior Advisor's ballot's will occur at the Toronto OLRB office on Monday. We will update the results on the website following the count.
November 29 - OLRB Regional Certification Meeting (Ottawa)
December 11 and 12 - OLRB Public Hearings Commence and Ballot Count of Lawyers (Toronto)
March 28 - OLRB Public Hearings
April 9, 12 and 18 - OLRB Public Hearings
Additional dates will be determined in April.
The OLRB hearings are public and anyone interested is welcome to attend.
Regional Certification Meeting (Nov 29, 2017)
As many of you already know, 23 ballots have already been counted. The result of that count is 13 in favour of the union, 9 opposed, and 1 spoiled ballot. At the Regional Certification Meeting the Society and the employer were unable to reach agreement on which of the remaining ballots should be counted, so all issues will be proceeding to hearing before the OLRB. The parties did discuss and agree upon which issue should be presented to the OLRB for decision first.
On December 11 and 12, the employer will call its evidence in an effort to demonstrate that the senior advisors should not be included as part of the bargaining unit. The employer’s position is that as lawyers, members of this group are excluded from the right to unionize, or should not be permitted to bargain with the other employees because they have a distinct “community of interest” (i.e they do not have workplace interests in common with other NJI employees). The Society will then present its case, and will argue that senior advisors are not employed in their capacity as “lawyers”, are entitled to bargain collectively, and share a community of interest with other NJI employees.
Assuming the hearings about the senior advisors conclude in the two days already scheduled, the Board will issue a written decision on their status within a number of weeks or months. If the hearings relating to the senior advisors are not concluded in the two days allotted, further hearing dates will be scheduled to deal with this issue.
If the Society is successful on the question of the right of senior advisors to be part of the bargaining unit (and we expect to be successful), the ballots of the senior advisors will be counted.
The other issues requiring a decision by the OLRB are as follows: (i) the status of the managers: The employer’s position is that the managers should be in the bargaining unit and that their votes should therefore be counted. As we noted earlier, we do not believe that the employer actually wants their managers to be part of the union. We believe the employer is taking this position because it believes that if the manager’s votes are counted, the union will not have enough votes to be certified. The Society’s position is that managers should not be in the bargaining unit and their votes should not be counted. (ii) whether accounting and clerical/administrative employees must be part of the bargaining unit: The employer’s position is that they must be. Again, we believe that the employer is taking this position, not because they want more people to be unionized, but because they believe that these employees voted against the union. The fact is, it is common for accounting and clerical employees to be excluded from bargaining units. The OLRB will need to hear evidence on these issues on further hearing dates that may be spread over a year.
Ultimately, the OLRB’s decision on these issues will determine whether more ballots need to be counted before it can be determined whether the Society can be certified and get down to the business of bargaining with your employer.